No, Native American Citizenship Does Not Support Limits on Birthright Citizenship

The president’s attempt to limit birthright citizenship—the principle that all people born on U.S. soil are U.S. citizens—unexpectedly brought the status of this land’s first peoples into question.

On day one of his second presidency, President Trump signed an executive order titled “Protecting the Meaning and Value of American Citizenship.” The order declares that children born in the U.S. are not citizens if their mothers are either “unlawfully present in the United States” or their presence is “lawful but temporary” (such as on a student visa), and their fathers are neither citizens nor permanent residents at the time of their birth.

The order faced immediate legal challenges. Lawsuits were filed across the country. Their plaintiffs include expectant mothers, advocacy organizations, and more than 20 states. Several district courts have already blocked the order.

And how do the president’s lawyers respond? In part by claiming that Native Americans aren’t birthright citizens under the Constitution, so children of people temporarily or illegally in the United States aren’t either.

This defense misconstrues both the Constitution and the Supreme Court decisions relying on it.

The Constitution and Birthright Citizenship

Birthright citizenship is a hallowed tradition in the United States. It is what transformed this country from a collection of immigrants into contributors to a shared democratic project. U.S. courts have long recognized this principle. The shameful exception was the exclusion of African Americans. In 1857, Dred Scott v. Sanford held that the nation’s embrace of slavery meant even free Black people could never be citizens.

Dred Scott was one of many steps leading to the Civil War, and the Reconstruction Congress quickly rejected it. First, the 1866 Civil Rights Act reinstated birthright citizenship over President Andrew Johnson’s veto. Next, the 14th Amendment enshrined it in the Constitution, declaring that everyone “born ... in the United States, and subject to the jurisdiction thereof” is a U.S. citizen.

Birthright citizenship has been challenged before. In 1898, United States v. Wong Kim Ark held, in a time of vicious racist attacks on Chinese, that U.S.-born children of Chinese immigrants were indeed birthright citizens under the Constitution. In the 1990s, another wave of anti-immigrant sentiment led to bills limiting birthright citizenship to children of legal immigrants. But the U.S. Office of Legal Counsel opined that any such attempt would be unconstitutional, and the bills went nowhere. Now President Trump seeks to end this constitutional principle without even going through Congress.

The Trump Administration’s Flawed Indian Law Defense

In response to legal challenges to the executive order, Trump administration lawyers argue that children of people temporarily or illegally in the United States are somehow not subject to its jurisdiction as the Constitution says. They rest this argument in part on a claim that Native Americans aren’t birthright citizens under the Constitution, so children of people temporarily or illegally in the United States aren’t either.

It is true that the birthright citizenship clause of the 14th Amendment did not include American Indians born into a tribe. This is clear from the original debates. Congressional opponents claimed that Chinese and “Gypsies” (Roma) recognized no allegiance to the United States, and so they were unfit for U.S. citizenship. But everyone agreed that their children would be citizens under the amendment. Only three groups were not “subject to the jurisdiction thereof”: children of foreign diplomats, children of those at war with the United States born on occupied territory, and children born into an Indian tribe.

Some worry that the Indian exclusion is all about racism. Certainly both sides of the congressional debate did say racist things about Indians. (By the way, both sides said lots of racist things about Chinese and claimed that Chinese were just transients who had no allegiance to the United States. But both sides also agreed that children of Chinese immigrants would become citizens under the amendment.) Instead, the debates show, excluding tribal citizens from blanket constitutional citizenship was about tribal nationhood and the special jurisdictional status that it created.

During the debates on the citizenship clause, some senators (mostly the same ones who opposed birthright citizenship for all non-whites) wanted a special provision explicitly “excluding Indians not taxed.” But Sen. Jacob Howard, who proposed the birthright citizenship clause, insisted that Indians born in tribal relations were not “subject to the jurisdiction” of the U.S. as the amendment intended because they had always been recognized as “sovereign powers,” or “quasi foreign nations.” Sen. Lyman Trumbull, another key architect of Reconstruction, also argued that, because of this, the federal government lacked jurisdiction over tribes without their consent. Howard did not claim that the United States could never exercise jurisdiction over Native people. He agreed that American Indians were not subject to “full and complete jurisdiction” to the same extent as U.S. citizens. More important, however, was that “our legislation has always recognized them as sovereign Powers.”

This did not mean that tribal members could never become citizens. In fact, the Reconstruction Congress approved several treaties extending citizenship to particular tribes. But unlike citizens of foreign nations coming to the United States, tribal nations had a sovereign status even while on U.S. soil. When, for example, in 1823, New York’s high court declared tribal members were not citizens, it was because “[t]hough born within our territorial limits,” Indians “are not born in obedience to us. They belong, by birth, to their own tribes,” which were recognized as “national communities.” Tribal nations agreed. When the Cherokee Nation went to the Supreme Court in 1831 to challenge Georgia’s encroachment on its sovereignty, it “insisted that individually they are aliens,” rather than citizens of the United States.

This separate status means that jurisdiction with respect to tribes and their people was and is different. In Worcester v. Georgia, the Supreme Court held that Georgia’s actions in usurping Cherokee sovereignty were “repugnant to the constitution, laws, and treaties of the United States.” In 1866, the same year Congress debated the 14th Amendment, the Supreme Court held in The Kansas Indians that although Indian and white lands had become intermingled, the state still could not tax Indian property. Although the Supreme Court has since approved much broader state and federal jurisdiction regarding tribal members, it remains true that both constitutional and state power are different in this field.

The government’s lawyers ignore this difference in original intent. Instead, they rely on snippets of language from the 1884 Supreme Court decision Elk v. Wilkins. That case rejected birthright citizenship for John Elk, a Winnebago (Ho-Chunk) man living in Omaha, Nebraska. Elk was born to tribal parents in the United States but declared that he had “severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States.” The Supreme Court held he was not a citizen under the 14th Amendment: “The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states; but they were alien nations, distinct political communities.” The Court continued:

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more “born in the United States and subject to the jurisdiction thereof,” ... than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.

The government’s attorneys claim that “[i]llegal aliens and temporary visitors have far weaker connections to the United States than do members of Indian tribes,” so if the link with Indian tribes is not enough for birthright citizenship, “its weaker link with illegal aliens and temporary visitors even more obviously does not do so.” And if Indians’ “direct and immediate” allegiance to their tribes was enough to prevent their birthright citizenship, so too is the status of children born to parents here temporarily or illegally.

This argument misses the point. As Elk v. Wilkins recognized, the original intent of the 14th Amendment exception reflects the distinct sovereign status of tribal nations even within the borders of the United States. It does not apply to children whose parents come from different countries, but who, upon entering the U.S., become fully subject to U.S. jurisdiction.

Later cases recognized this. In United States v. Wong Kim Ark, attorneys tried (as Trump’s lawyers are trying now) to use Elk v. Wilkins to justify limits on birthright citizenship. The Supreme Court shut them down: “Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country.”

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So does this mean that Native Americans today are not birthright citizens? No. A 1924 statute, now codified at 8 U.S.C. § 1401(b), makes all children born in the U.S. to tribal members citizens by birth. No executive order can repeal that law. So while tribes are watching the challenges to the executive order, they’re right not to worry that it will affect their citizens. The bigger problem is that Native people are being harassed by federal immigration officials targeting them for their skin color.

Could Congress constitutionally repeal that 1924 statute? Probably not, but even if it did, it wouldn’t matter. Even if the statute was repealed, all children born to tribal members would still be birthright citizens because their parents were citizens. That’s true even if they were born outside the United States, by the same principle that Canadian-born Sen. Ted Cruz (R-Texas) is a birthright citizen because his mother was a citizen.

In the end, Trump’s lawyers are following an old playbook. They cherry-pick phrases from Elk v. Wilkins to challenge the original understanding of the 14th Amendment. Both federal courts and federal officials rejected those efforts in the past. Despite the recent erosion of accepted constitutional understandings, they are likely to do so again.